Weden v. San Juan County, No. 64776-3
| Court | United States State Supreme Court of Washington |
| Writing for the Court | JOHNSON; DURHAM; SANDERS; ALEXANDER |
| Citation | 135 Wn.2d 678,958 P.2d 273 |
| Parties | John WEDEN II; John Pfarr and Jamie Pfarr, d/b/a Zzoomers Scooters and Bikes, d/b/a Zzoomers II Wave Venture Tours; Skagityamkaw, Inc., a Washington corporation, d/b/a Skagit Valley Yamaha/Kawasaki; William Cameron; Timothy Fischer; Brian Marble; Ryan Harris; Leonard Moen and Lillian Sigle Moen, D.V.M.; National Marine Manufactures Association on behalf of the Personal Watercraft Industry Association; and The Port of Lopez, Respondents, v. SAN JUAN COUNTY acting through its Board Of Commissioners, its County Parks And Recreation Board, and its Superintendent Of Parks And Recreation, Appellants. |
| Docket Number | No. 64776-3 |
| Decision Date | 09 July 1998 |
Page 678
Scooters and Bikes, d/b/a Zzoomers II Wave Venture Tours;
Skagityamkaw, Inc., a Washington corporation, d/b/a Skagit
Valley Yamaha/Kawasaki; William Cameron; Timothy Fischer;
Brian Marble; Ryan Harris; Leonard Moen and Lillian Sigle
Moen, D.V.M.; National Marine Manufactures Association on
behalf of the Personal Watercraft Industry Association; and
The Port of Lopez, Respondents,
v.
SAN JUAN COUNTY acting through its Board Of Commissioners,
its County Parks And Recreation Board, and its
Superintendent Of Parks And Recreation,
Appellants.
En Banc.
Reconsideration Denied Sept. 11, 1998.
[958 P.2d 275]
Page 683
John Arum, Seattle, for Amicus Washington Environmental Council and Olympic Park Associates.[958 P.2d 276] Rachael Paschal, Michele Osborne, Seattle, for Amicus Center for Environmental Law & Policy.
Joseph Coniff, Olympia, for Amicus Northwest Marine Trade Association.
Randall K. Gaylord, Friday Harbor, Brett & Daugert, Philip Buri, Rand Jack, Bellingham, George Van Cleve, Washington, DC, for Appellants San Juan County, et al.
Williams, Kastner & Gibbs, Jeffrey Johnson, Dennis Reynolds, Margaret Sundberg, Seattle, Christopher Hodgkin, Friday Harbor, for Respondents John Weden, et al.
Page 684
JOHNSON, Justice.
In January 1996, San Juan County passed an ordinance that banned the use of motorized personal watercraft, subject to certain limited exceptions, on all marine waters and one lake in that county. We are asked to determine whether that ordinance is unconstitutional or violative of the public trust doctrine. We conclude that it is neither and, consequently, reverse the Whatcom County Superior Court's judgment that the Ordinance is void and of no force and effect and remand for entry of an order granting San Juan County's motion for summary judgment.
The Board of Commissioners of San Juan County (Board) held public meetings on September 18 and 19, 1995, for the purpose of discussing what some citizens had identified as a growing problem with the use of motorized personal watercraft (PWC) in San Juan County waters. 1 Following those meetings, the Board conducted a workshop with the San Juan County Prosecuting Attorney "regarding drafting of proposed regulations regarding the use of Personal Watercraft in San Juan County...." Ex. 249, at 2 (Ordinance No. 3-1996). On January 23, 1996, the Board conducted a public meeting on a proposed ordinance that was developed at the workshop. One week later, the Board adopted Ordinance No. 3-1996 (the Ordinance). The Ordinance prohibits the operation of PWC on all marine waters of San Juan County, except:
a. During such time that the Personal Water Craft is being used for or engaged in interstate or foreign commerce; and
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that during such use the Personal Water Craft is following the most direct route practicable;b. During such time that Personal Water Craft are operating under a permit issued by San Juan County or a United States Coast Guard Permit;
c. For emergency purposes when there is a reasonable belief that such use is necessary to protect persons, animals or property.
Ex. 249, at 12-13 (Ordinance No. 3-1996, § 5). The Ordinance also banned the use of PWC outright on Sportsman Lake in San Juan County.
A personal watercraft is defined in the Ordinance as "a vessel of less than sixteen feet (16') in length that is propelled by machinery, commonly a jet pump, and which is designed to be operated by a person sitting, standing or kneeling on the vessel, rather tha[n] being operated by a person sitting or standing inside the vessel." Ex. 249, at 12 (Ordinance No. 3-1996, § 3). The Ordinance provides that it will expire two years from the date of enactment unless otherwise extended. 2
The Ordinance contained an extensive list of "legislative findings" regarding the nature of the marine environment in San Juan County and the characteristics of PWC. Regarding the marine environment, the Ordinance states:
7. The marine waters of San Juan County has [sic] many species of threatened[958 P.2d 277] and endangered species of marine mammals and birds as visitors, migrants or residents that are sensitive to vessel traffic in and among the San Juan Islands....
....
9. The refuges and other protected areas offer habitat [where] birds nest and rest and seals rest and nurture their
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young. Birds disturbed or panicked by vessels trample eggs and chicks, knock chicks from nests onto waves and rocks, and expose vulnerable offspring to sun, rain, and predators. Newborn seal pups may become separated from their mothers, crushed by a herd of panicked adults or be forced into cold or swift water prematurely. If the disturbances are continued entire refuge areas may be abandoned by wildlife.Ex. 249, at 4-5 (Ordinance No. 3-1996). The Board also noted that tourism, which is a "major economic factor" in San Juan County, is "heavily dependent" on visitors who seek "tranquillity" and the opportunity "to view marine life and habitat." Ex. 249, at 6 (Ordinance No. 3-1996). It made no findings specifically relating to the use of PWC on Sportsman Lake.
The Board's findings in reference to PWC were as follows:
17. PWCs are capable of high speeds, up to 60 MPH, have a high degree of maneuverability. Operation typically includes rapid changes of direction, rare travel in straight lines, and frequent operation in multiple numbers in a confined area. Operators are expected [to] be in contact with the water either by spray or falling overboard. PWCs are small and have a shallow draft which allows them to be operated at high speeds close to shore.
18. The high speed of a PWC, the rapidity with which it can change direction and the waves and noise it produces cause disruption to other vessels, swimmers and divers and the natural environment. If the operators violate the law, they are almost impossible to apprehend because of the high speed and high maneuverability. Because they rarely travel in straight lines, the vessel speed cannot be easily determined.
Ex. 249, at 8 (Ordinance No. 3-1996).
The Ordinance enumerates multiple effects of PWC about which the Board was concerned:
19. The noise from PWCs interferes with the historical and current uses and enjoyment of the shoreline property. Although unmodified PWC are no louder than other types of
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boats, modifications to PWCs are more common than other vessels. PWCs commonly operate with other PWCs close together for reasons of safety, fun and convenience. As a general rule, additional PWCs operated in the same area will cause the overall noise level to increase. PWC, frequently operate in a small area causing conflict with shoreline users. Finally, part of the fun of PWC use is rapid acceleration, deceleration and the jumping of wakes. These operations create an uneven noise, that is louder when the PWC is out of the water, that is objectionable and has been compared in pitch to the sound of a mosquito. These characteristics are not shared by other vessels operated to reach a destination.20. The operational characteristics of PWCs make them hazardous and incompatible with destination commercial and recreational vessel traffic in and through San Juan County. The maneuverability and ability to travel close to shore of PWCs make them able to harass wildlife and bird life unlike destination power vessels. These attributes are also inconsistent with the protection and preservation of the wildlife which inhabit the waters and refuges of the County. These attributes are also inconsistent with the tranquil lifestyle quality desired by the tourists and residents of the County.
21. The operation of PWCs is less safe and more damaging in San Juan County marine waterways than in other waters because of cold water temperatures, changeable and unpredictable currents, variable tidal heights exposing rocks at different times, floating deadheads, rocks and reefs, and populations of marine life.
[958 P.2d 278] 22. Accident statistics for PWCs is not yet available for San Juan County, largely because PWC use is only emerging. The evidence from other larger communities where PWC is more established is helpful, however. A report entitled "California Boating Accident Report for 1994" showed that Personal Water Craft made up 13.1 percent of the boating industry, but were involved in 36 percent of all reported boating accidents, 46 percent of the injuries and 17.5 percent of the fatalities and 17 percent of the property damage.
....
24. The high-speed, high-pitched sound, and ability to
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operate close to shore are characteristics that are unique to PWCs. While the effect of such operation on marine life in San Juan County is unknown, it cannot be beneficial and appear [sic] most likely to be deleterious. Although most wildlife is believed to be quick enough to avoid collisions with powerboats, it is unknown whether all marine life of San Juan County can react quickly enough to avoid PWCs. Without additional evidence to support the safety of PWCs, and given the harmful impact that could result to the County from destruction of its marine life it is found that the best policy is one of "prudent avoidance" and prohibition of PWCs within San Juan County.....
25. The Washington State Legislature has enacted regulations regarding the operation of PWCs, which are inadequate for the unique conditions in San Juan County....
....
27. Although noise is regulated by RCW 88.12.085, that regulation does not address the cumulative noise of vessels operating in the same area, the annoying impact of vessels that are not destination-bound, and other noise characteristics unique to PWCs.
Ex. 249, at 8-11 (Ordinance No. 3-1996).
Shortly after the Board enacted the Ordinance, a group of PWC users, PWC rental and sales businesses, and a PWC industry...
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